Kaguora v Gilly Security and Investigation Limited (Appeal E226 of 2022) [2024] KEELRC 2588 (KLR)
The bottom line
#Kenya's Employment Court confirmed that employees who resign voluntarily cannot claim terminal dues like service pay, and must file accrued leave and overtime claims within 12 months.
What this practically means
#Executive summary
#Key legal issues
#Whether the Appellant's claims for accrued leave and overtime were caught by limitation under Section 90 of the Employment Act
The claims were a continuing injury and time-barred as they accrued at the end of each month, requiring filing within 12 months of cessation; the claim filed on 24/1/2020 was out of time.
Section 90 of the Employment Act provides a 3-year limitation period for actions arising out of employment contracts, but only 12 months in cases of continuing injury. Following G4S Security Services, monthly-accruing benefits such as leave and overtime constitute continuing injuries. The Appellant's employment ceased on 1/1/2019 and the suit filed on 24/1/2020 exceeded the 12-month window. Section 90 is mandatory with no provision for extension of time.
Whether the Appellant was entitled to notice pay and service pay upon resignation
Notice pay failed because proper one-month notice was given; service pay was unavailable because the Appellant was an NSSF member, exempted under Section 35(6)(d) of the Employment Act.
The Appellant tendered a one-month resignation notice by letter dated 30/11/2018, so no notice pay was payable. Under Section 35(6)(d), employees registered with NSSF are exempt from service pay. The Court agreed with the trial court on both heads. As the resignation was voluntary, sections 41, 43 and 45 on termination did not apply.
Whether the Appellant was entitled to 12 months' compensation
Not entitled; the claim was not justified under any head and the Appellant resigned voluntarily without alleging coercion.
Compensation under the Employment Act attaches to unlawful termination. The Appellant resigned voluntarily for health reasons, so sections 41, 43 and 45 had no application. Moreover, the ground of unlawful termination was not pleaded. The Court found no basis for the award.
Legal principles established
#- A contractual benefit which accrues at the end of each month amounts to a continuing injury for purposes of limitation under Section 90 of the Employment Act.
- Claims for accrued leave and overtime that accrue monthly must be brought within 12 months of cessation under Section 90 of the Employment Act.
- Where an employee is registered with NSSF, they are exempt from service pay under Section 35(6)(d) of the Employment Act.
Court orders
#- 1.The appeal is dismissed with costs
- On appeal from
- Trial Court (Magistrate's Court, employment dispute)
- Not stated
- Jurisdiction invoked
- First appeal from the trial court's judgment of 5th December 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kaguora v Gilly Security and Investigation Limited (Appeal E226 of 2022) [2024] KEELRC 2588 (KLR)", Case Analysis (2024). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2588/eng@2024-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.